HOUSTON — In the deeply Republican state that has executed more convicts than any other and the county that has sent the most to death row, an unusual legal proceeding will begin this week: A Democratic judge will hold a lengthy hearing on the constitutionality of the death penalty in Texas.
State District Judge Kevin Fine surprised many Texans last spring when he granted what is usually a routine and typically rejected defense motion and ruled the death penalty unconstitutional. His ruling came in the case of John Edward Green Jr., who is awaiting trial on charges he fatally shot a Houston woman and wounded her sister during a robbery in June 2008.
Following a torrent of criticism from Republican Gov. Rick Perry and other Texans, Fine clarified his ruling, saying the procedures the state follows in getting a death sentence are unconstitutional. Then Fine rescinded his ruling and ordered the hearing, which starts today, saying he needed more information before making a final decision.
Most Texans consider the death penalty a fitting punishment for the worst kind of crimes, and Harris County, which includes the state's largest city, Houston, has sent more inmates to the lethal-injection gurney than any other in Texas. But, anti-death-penalty activists have created serious doubt recently about whether two men were wrongly executed.
Fine is an unusual Houston jurist: a Democrat who sports dense tattoos and has said he's a recovering alcoholic and former cocaine user.
He declined to be interviewed for this story, but he has said that he has taken notice of recent death row exonerations and his ruling will "boil down to whether or not an innocent person has actually been executed."
But Fine also has said he has no personal interest in the death penalty, he believes the death penalty is constitutional and the hearing will be limited to issues related to Green's case. The hearing, which could last up to two weeks, is expected to include testimony that Green's attorneys say will show how flaws in such things as eyewitness identification, confessions and forensic evidence have led to wrongful convictions.
Green's attorneys say the hearing is not a referendum on whether Texas should have a death penalty.
"We don't say a state doesn't have the right to have a death penalty," attorney Casey Keirnan said. "We're saying the way we do it in Texas under our statute is unconstitutional."
The debate over possible wrongful executions in Texas has been fueled by the cases of Cameron Todd Willingham and Claude Jones.
Willingham was put to death in 2004 after being convicted of burning down his home in Corsicana in 1991 and killing his 2-year-old daughter and 1-year-old twins. His execution has been questioned since several fire experts found serious fault in the arson findings that led to his conviction.
Jones was convicted in the 1989 killing of a liquor store owner during a robbery near Point Blank, about 75 miles north of Houston. His 2000 execution was called into question after a new DNA test showed a hair that had been the only piece of physical evidence linking him to the crime scene didn't belong to him.